• •

  Customer Service Representatives (CSRs), Claims Specialists (CSs), and higher-level positions may conduct the pre-waiver decision personal conference.

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  The position authorized to conduct the personal conference (decision maker) is the same as for making the overpayment disposition decision (management review requirements). For management review requirements, see SI 02220.005C.

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  Unlike Title II, any position, and any grade level authorized to recommend or approve an overpayment disposition may conduct a pre-waiver decision personal conference.

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  The decision maker conducting the personal conference can be and usually is the decision maker who makes the waiver determination after the personal conference.

The liable individual is entitled to a fair and full hearing before an impartial decision-maker. Therefore, a field office (FO) employee who has participated in the overpayment proceedings in a case cannot be a decision-maker for the pre-decision personal conference. For more information on who is liable for repayment of an overpayment, see SI 02201.020 and SI 02201.021.

• •

  Participation in the case means an FO employee has made a determination about any fact that is material to the pending waiver determination, which includes fault, ability to repay, credibility of the overpaid person.

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  If the decision maker reviewed the waiver request, the case file, and any supporting evidence, such as pay stubs, financial information, etc.; then made the preliminary determination to deny the request, then they are considered to have participated in the overpayment proceedings.

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  If the decision maker merely developed the underlying changes to the record that caused the overpayment, then they did not participate in the overpayment proceedings.

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  While an initial overpayment notice is a determination that an overpayment exists, mere preparation of this notice does not constitute participation in the overpayment if the author made no determinations about facts at issue in the waiver determination.

EXAMPLE: As part of a scheduled redetermination, you verified the SSI recipient's earned income. The income verification revealed that the recipient earned more than we estimated. When we input the verified wages, the system computed an overpayment.

However, you did not participate in the overpayment proceedings because you did not make a preliminary determination concerning any factor at issue in a request for waiver (e.g., without fault and whether recovery would defeat the purpose; or be against equity and good conscience).

Under these circumstances, you may conduct a personal conference.

When all employees at the appropriate grade levels have been involved with the overpayment proceedings, such that they cannot be the decision maker on a waiver request, arrange to transfer the case to a nearby FO. Advise the debtor or their representative that the transfer is necessary.

In rare cases, you may need to arrange for an authorized employee from another office to travel to the servicing FO to conduct the conference.

“Rare cases” include, but are not limited to situations when the:

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  Distance between offices is too great for the recipient to travel due to physical or mental limitations;

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  Recipient or witness’ financial circumstances prohibit their travel to an office further away than the servicing office.

Part of the waiver decision process is to assess whether the statements of the overpaid individual are consistent with the other evidence regarding the waiver request. Offer the individual a face-to-face interview or choice of telephone contact or video conference in place of a face-to-face interview.

Prior to the personal conference, the overpaid recipient (and their payee or representative) has the right to:

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  Review the folder and any information that we used to calculate the overpayment, including electronically stored information; and

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  Review the applicable overpayment and waiver laws and regulations found in §1631(b) of the Social Security Act (the Act), and Title 20 of the Code of Federal Regulations (CFR), §416.537 and §416.538.

The decision maker for the case must be prepared to answer questions.

If the individual asks for a telephone or video conference, you must mail a copy of the relevant overpayment documents to them for review prior to the conference. Prior to mailing, remove material that refers to another person or does not relate to the overpayment or waiver request.

The personal conference is an independent and thorough examination of all the evidence related to the overpayment and the requested waiver. The decision requires a wholly independent attitude without prejudice by the decision maker. The decision maker is bound by the requirements of the Act, the CFR, and the policies and procedures in the POMS. The decision maker cannot depart from the listed authorities.

After a personal conference, the first level of appeal for a SSI waiver denial is reconsideration. This is different from a Title II waiver denial where the first level of appeal is a hearing. This difference is the result of different regulations. The decision maker for the reconsideration of the SSI waiver denial cannot be the decision maker who made the initial determination to deny the waiver. For SSI reconsideration information, see SI 04020.030B.2.

When an overpaid individual, or their representative, files a request for reconsideration of a waiver denial within 60 days of the denial notice, do not resume recovery action until:

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  The determination affirms the waiver denial; and

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  60 days have passed from the date of the Notice of Waiver denial.

If you are unable to obtain documentation of the cause and/or the calculation of the overpayment, and you have nothing to support the determination that the liable person is at fault in causing the overpayment, find the individual not at fault. For more information about who is liable for an overpayment, see SI 02201.020 and SI 02201.021.

Do not determine the individual's ability to repay the overpayment.

Waive the overpayment because recovery is against equity and good conscience in this case.

1. a. 

   If the liable person declines the offer of folder review, they retain the right to a personal conference.

2. b. 

   If the liable person declines the folder review and the personal conference, make the waiver decision based on the evidence in the file.

   Input the waiver decision using the Direct SSR Update MSSICS (UODC, UOPD, and UOWV screens), see MS 00304.007, MS 00304.008, and MS 00304.009, prepare the notice of waiver decision (see SI 02260.006D.2. in this section) and document the file (see SI 02260.006C.5. in this section).

3. c. 

   If the liable person does not appear for the personal conference, contact them by telephone to determine whether they want to reschedule or decline the personal conference.

   Reschedule the conference if requested. If unable to contact the recipient by telephone, send a notice of Personal Conference & Folder Review (Resched) to reschedule the conference. Explain in the notice rescheduling the personal conference that failure to appear will result in SSA making the waiver determination based on the evidence we already have.

4. d. 

   If the liable person does not attend or declines the second scheduled conference, make the waiver decision based on the evidence in the file. Input the waiver decision using the Direct SSR Update MSSICS (UOPD, UODC, and UOWV) screens. See MS 00304.008 through MS 00304.009, and document the file (see SI 02260.006C.5. in this section).

5. e. 

   Send a Personal Conference Refused or a Personal Conference Letter (No Show) DPS notice.

6. f. 

   When the person does not appear for the personal conference, prepare and send a notice of Personal Conference (Waiver Denied) or Partial Waiver Approval (Personal Conference Decision) if you fully or partially deny the request for waiver.

For MSSICS or Consolidated Claim Experience (CCE) cases, the decision maker must document all of the personal conference decision information on the Report of Contact page in CCE. For more information on the Report of Contact page in CCE, see MS 08122.010.

For both MSSICS and non-MSSICS cases, the technician must fax all supporting documentation into NDRed using the Evidence Portal (EP). For more information on EP, see MS 09701.001.

If the case is not in MSSICS:

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  Prepare, date, and sign the special determination (form SSA-553).

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  Document the personal conference decision in either the Report of Contact page in CCE or form SSA-553.

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  Include sufficient information on the determination to document the file that the interviewer provided the liable person an opportunity to review their folder; and whether they attended the personal conference.

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  Include whether the liable person reviewed the file and whether they contested any of the information reviewed.

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  Review the updated information obtained since the preliminary waiver decision determination in file or the proposed waiver denial notice.

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  Note in your personal conference decision if anything was confirmed or refuted as a result of the personal conference or additional evidence submitted, and whether new information affected the final determination.

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  The determination documents the explanation entered on the DPS Personal Conference (Waiver Allowed/Denied) notice.

For instructions on completing the SSA-553, see GN 01010.365. The post personal conference determination should describe the appropriate fault and recovery decisions and explain the decision by citing evidence in the record:

Was the liable party at fault in causing the overpayment according to SI 02260.010 and SI 02260.015?

If yes, who was at fault and how did you reach this conclusion? For example, did the debtor:

• •

  Fail to report information timely that was relevant to their eligibility or payment amount;

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  Receive duplicate payments for one or more months; or

• •

  Conceal or misstate facts affecting their eligibility or payment amount?

If no, why were they not at fault?

If the recipient or payee was not at fault, refer to the evidence in the file to explain why the recovery met or did not meet the criteria for either:

• –

  Impede effective or efficient administration of Title XVI of the Act (SI 02260.030);

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  Against equity and good conscience (SI 02260.025);

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  Defeat the purpose of Title XVI of the Act (SI 02260.020); or

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  Adverse changes in financial circumstances following a waiver denial (SI 02260.040)?

Further action by the decision maker will depend on the type of waiver decision. Waiver approval notices are usually systems generated (see NL 00803.205). For a list of exclusions, see NL 00801.010. Waiver denial notices are always manual (see NL 00803.210).

The decision maker prepares and issues the notice of waiver decision if the notice is not automated. DPS personal conference notices include:

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  Personal Conference (Waiver Allowed/Denied);

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  Personal Conference and Folder Review (Resched);

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  Personal Conference and Folder Review (Waiver/Recon);

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  Personal Conference Appointment Letter;

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  Personal Conference Letter (No-Show);

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  Personal Conference Refused; and

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  Waiver Denial for Defeats the Purpose.

If the liable individual is a legal guardian or representative payee, send a manual notice of the approved waiver request to the liable legal guardian or representative payee.

For waiver decision notices, see NL 00803.200, Notice of Waiver Decision – General. For a complete list of circumstances that require a manual notice, see NL 00801.010B.2.